Wednesday, June 21, 2017

A newly discovered document proves that Missouri landlord Trent Cowherd and his thuggish lawyer, Craig Lowther, conducted an unlawful eviction against us -- and they did it intentionally or via raging ignorance and incompetence.

We're talking about the Rent-and-Possession (R and P) Petition designed to have Carol and me removed as tenants from property at 4070 S. Fort Ave. in Springfield, Missouri. The petition has been in the case record since August 5, 2015, the day it was filed. But it is "newly discovered" in the sense that we had never seen it until recently -- and we never were served with it.

I had noticed an item titled "Petition" in the court file, but I assumed it was a copy of an R and P form that had been attached to our door in various forms during the eviction proceeding. On a recent visit to the Greene County Courthouse, I decided to print out the petition -- and, lo and behold -- it was not the form; it was a document, like a complaint in a lawsuit, upon which mine eyes had never feasted. We could see immediately that it was most informative. What does it tell us?

(2) It confirms that we never were lawfully served, as I had argued in our Counterclaim and Motion to Quash Execution, and that means the court had no jurisdiction over my wife, Carol, and me.

(3) The notion that Carol unlawfully was on the premises -- even though I told the Cowherd representative on the day I signed the lease that my wife was in Birmingham gathering our belongings and would be joining me in Missouri -- apparently originated with Cowherd, perhaps via a member (or members) of my family. The Cowherd rep OK'd Carol's presence in the apartment but did not write her name down as a tenant; the rep filled out the Rental Agreement and only allowed me to sign my name and fill in information about our pets. There is evidence in the lease that I told Cowherd about all the living beings that would be living in the apartment, and they approved them. But the eviction petition claims Carol was on the premises unlawfully -- and that is curious because Carol now faces a trespass charge in the bogus criminal case brought by the Greene County Sheriff's Office and Prosecuting Attorney Dan Patterson.

(Note: The Petition and Rental Agreement are embedded at the end of this post.)

Missouri law is clear that eviction proceedings cannot begin until a tenant's rent is late by at least one month. Here are the words straight from RSMo 535.120, which apparently has existed in one form or another since at least 1909. Why would Cowherd and Lowther be unaware of tenant-landlord law that has been around for more than 100 years? Hard to say. Here's how the law currently reads:

Whenever one month's rent or more is in arrear from a tenant, the landlord, if he has a subsisting right by law to reenter for the nonpayment of such rent, may bring an action to recover the possession of the demised premises.

That language seems pretty straightforward; a tenant is not a candidate for eviction proceedings until he is behind on rent by at least one month. But Cowherd and Lowther can't figure it out? Consider this language from the petition that Lowther filed on Cowherd's behalf:

4. That the Defendants are in arrears and there is now due unpaid rent in the amount of Seven Hundred Ninety Five Dollars and No Cents ($795.00).

5. Demand has been made for the rent, but has not been paid to the Plaintiff.

6. That said Lease Agreement signed by the Defendants provided for late charges and reasonable attorney fees should the employment of an attorney be necessary in order to collect the monies owed Plaintiff.

Let's address a few problems that arise from this language in Cowherd's petition:

(A) Our July rent had been paid, and the petition is dated August 5, 2015. So we're talking about the August rent here -- and on its face -- the petition shows that rent is late by five days. Cowherd makes no mention of the RSMo 535.120 requirement that rent be late by at least one month. He makes no mention that our rent was not even close to being late by one month. He makes no mention that he had zero grounds to institute eviction proceedings against us.

Craig Lowther

(B) Cowherd never made demand for rent. Instead, the company placed a Notice to Vacate on our door, giving no reason as to why we were to leave. When I called the office to inquire about the notice, I was told it was because my mother (Gondy Shuler) wanted off the lease as co-signer, and we had not qualified on our own. I noted that no one from Cowherd had informed us that we were to qualify on our own. And when I asked where such a provision was in the lease, the Cowherd rep could not answer and simply changed her tune to say, "I don't have to renew a lease with you, and we are deciding not to renew the lease." I taped the phone conversation and entered it into the court record, and when pressed under oath, a Cowherd rep admitted there was no such provision in the lease. This was clear evidence of breach of contract, which was part of our counterclaim that never got heard.

(C) The Lease Agreement does allow for late charges, but Cowherd never sought late charges because it never demanded the August rent at all. It simply told us to leave, for reasons not found in the lease. More importantly, late fees are proper under the lease, but attempted eviction is not proper under state law until rent is late by at least one month.

As for lack of unlawful service, we addressed that in our Motion to Quash Execution:

The judgment in this case is void due to improper service. Plaintiff Trent Cowherd ("Cowherd") elected to use the posting-mailing form of service allowed in landlord-tenant cases under RSMo. 535.030(2). But the docket in this case shows the petition never was mailed to Shuler. Missouri courts have held that "proper service of process must be accomplished before a court can obtain jurisdiction over the person or property of defendant." Reisinger v. Reisinger 39 S.W. 3d 80 (Mo. App. E.D., 2001). Further, Missouri courts have held: "[A] personal judgment rendered by a court without personal jurisdiction over a defendant is void and may be attacked collaterally." Crouch v. Crouch, 641 S.W. 2d 86 (Mo., 1982). Shuler raised the defenses of lack of personal jurisdiction and insufficiency of service of process in his answer, before ever appearing in court. That means the waiver provisions of Rule 55.27(g)(1)(B) were not triggered, contrary to the ruling of the trial court on this issue." A defending party who wishes to raise defenses of lack of personal jurisdiction, insufficiency of process, or insufficiency of service of process must do so either in a pre-answer motion or in the party's answer." Worley v. Worley, 19 S.W. 3d 127 (Mo., 2000).
The Notice of Eviction in the instant case also was improperly served. Missouri law holds, "The Missouri Eviction Notice must be served either personally on the tenant or by leaving it with a person at least 15 years of age who lives on the property. If no one is present, the server may post the demand and complete a sworn affidavit attesting to service." According to the docket in this case, no sworn affidavit attesting to service of the eviction notice is on file. That means service is unlawful, and said eviction notice is due to be quashed.

The service problems in our eviction case, which mean the judgment was void, only grew when we discovered Cowherd's R and P Petition in the court file about 10 days ago. We never were served with that either, had never seen it until we happened to stumble upon it during a courthouse visit on other matters.

Bottom line? We were kicked out of our home, had most of our physical possessions stolen by Cowherd's eviction crew, Carol had her arm broken, and I had an assault weapon pointed at my head . . . all because of a court judgment that was void on multiple grounds.

That sounds pretty grim, but we have discovered a sliver of light. The claim that Carol was unlawfully on the premises . . . well, there is some comedy involved in that. We will explain in an upcoming post.

21 comments:

Here's the mystery to me. The actions of Cowherd and his lawyer tell me there was some motive to get you and Carol out of that apartment ASAP, regardless of what the law says. What was that motive? Why the rush?

Aboard the Eliza Battle Ms Chappelle was interviewing Captain Marshall. She asked him how he knew Lt McDonald and the Captain replied that he and Lt McDonald were on the same nuclear weapons team that trained at Naha Airbase. Pilots from VMA AW 533 would fly a couple A-6's to the base for a couple of weeks periodically to train. The captain remembered one trip in Jan 1972, Lt McDonald and his navigator ,Lt Murray, flew together with the team on a Douglas c117 transport, for a 2 day trip. The A-6 aircraft was not needed. On the way back to Iwakuni, the c117 was flying in a winter storm at night. The crew chief had spot lights shining on the engines and ice was forming on the wings. The plane was bouncing and shaking and Lt McDonald said " Relax! The pilot is just shaking the ice off the wings" The Captain continued that when he read that Lt McDonald was shot down bombing a bridge, he knew something was not right because Lt McDonald's A-6 was NL 514, which was a tanker aircraft. Captain Marshall added that Lt McDonald and Captain Williams were not the only pilots who vanished mysteriously. Navy records read that Captain Roger Wilson was lost on a bombing mission in A-6 154145 NL 522. A-6 NL522 was a A-6B type aircraft. There were only 19 A-6B aircraft made and 154145 was not one of them. The Captain said that even though he communicates with ghosts,he was not delusional. He knew that as long as Senator John McCain is the gatekeeper to the POW/MIA issue,the truth will not be known. But! The crew of the Eliza Battle and other people who knew Lt McDonald, know that Senator McCain is not immortal and are recording evidence[ in code when needed] for future historians to uncover the truth about what happened to the Marines that were abandoned in Vietnam. There is a document on micro film [reel 460] in the Library of Congress, marked secret, that will help explain Captain Wilson's "disappearance".

"Knowingly" is an element of the trespass offense, and I don't see how the state can prove Carol knowingly was trespassing. The record shows you had filed a notice of appeal, which means you thought the trial court's ruling was incorrect. Therefore, Carol was where she thought she was lawfully entitled to be -- and, in fact, I think that was the case.

Thanks for a stellar comment. If you hang around the U.S. Justice System for any length of time, you learn that "knowingly" is a big part of the criminal law. It goes to state of mind, and as you say, Carol's actions show she clearly thought the trial court's eviction ruling was wrong, and that's why we had filed a notice of appeal.

Yes, it is. I'm Carol's husband, obviously, but I don't see how the state can prove she knowingly "assaulted" a law enforcement officer -- even if you discount the fact that she did not lay a hand on any of them. She thought the officers had no lawful grounds to be on the property, she thought the eviction was stayed by our notice of appeal. In fact, she did not just "think" those things, she "knew" them because I had looked up the law and showed it to her. Also, we now know she had a right under Missouri's Castle Doctrine Law to protect her home from what she believed (correctly) to be unlawful intruders.

She was right, under the law, on all counts. No way she knowingly assaulted anyone, even if you believe she made contact with an officer, which she didn't.

Anonymous Anonymous said...Here's the mystery to me. The actions of Cowherd and his lawyer tell me there was some motive to get you and Carol out of that apartment ASAP, regardless of what the law says. What was that motive? Why the rush?June 21, 2017 at 8:15 AM

Blogger legalschnauzer said...@8:15 -- That's a mystery to me, too. I think you are getting to the heart of the matter. June 21, 2017 at 8:16 AM

Some weeks (months?) back, one of your readers commented that your eviction seemed to be part of a "harmonic convergence" occurring simultaneously with some of your Bill Pryor postings and similar revelations. No doubt the Bentley, Becky, Luther, Jessica M-G and related cohorts were still gunning to shut down the Schnauzer.

I think you are sniffing in the right direction. A lot of things were going on connected to this blog in spring/fall 2015. I've probably forgotten some, but here are two that stand out:

(1) In April, 2015, Jessica Garrison gets a $3.5-million default judgment against, one that has zero basis in fact or law. Chances are she and Luther Strange know it's bogus, but they don't want me back in Alabama where I can appeal it and get it overturned as void, which it is.

(2) In August, 2015, I break the story of "Home Wrecky Becky" Mason and "Luv Guv" Bentley. Are they pissed? I think you can count on it. Do they want me back in Alabama, where I can be closer to the action and break more stories? No way.

What helps out in both of those cases? Locking Carol and me into another one-year lease that keeps us tied to Missouri. I think the desire to lock us into a second one-year lease is key, and I suspect pressure to do that was coming from Alabama.

Aboard the Eliza Battle Ms Chappelle and the Captain were discussing the disappearance of Lt McDonald. She Asked how Lt McDonald going to EL Toro contributed to Lt McDonald's disappearance. The Captain replied that if Lt McDonald was with the commanding officer of VMA AW 224 , then he could not gone missing on May 3, 1972. Ms Chappelle replied that she knew the Commander's oldest daughter Terry and her two sisters never forgot what the handsome dark haired-blue eyed young Marine pilot who came to Terry's high school graduation in 1972 looked like. The Captain responded," I do not want to sound like a sexist, but you think like a woman." Ms Chappelle replied, " I do not want to sound like a feminist, But you go to war and love with what you got. Consider us even." The Captain continued that three of the pilots of the Coral Sea have departed earth recently. They knew that they were mortal men and began recording what happened to Lt McDonald in coded messages. Other people realize that father time is knocking on the door and have recorded their messages. Senator McCains old age is becoming apparent and in the future, a new generation will discover the truth of the marines left in Vietnam. My Epitaph will read,"He did not turn his back on a fallen Marine"

Yes, it did, and thanks for asking. The trespass count, the only issue on the table today, was dismissed. That means half of the case against Carol is gone, with the count for "assault of a law enforcement officer" remaining.

Both counts are misdemeanors, but the "assault" portion obviously is the more significant of the two. Still, it was nice to see the trespass part get bounced. After being cheated in court for so many years, Carol and I almost didn't know how to react to seeing a motion decided correctly -- in our favor. (I should say in "her" favor because I'm not a party to this, technically. But I was very much involved in events that led to the charges, and I'm a highly interested spectator -- and blogger -- you might say. It was Carol's win -- and Public Defender Patty Poe's win -- and they both deserved it.)

So yes, it did go well. Will have a post with more details in the a.m.

Ah, we have a wise guy on our hand. It might surprise you to learn these things are governed by law. Tenants don't have many rights, but they do have the right not to be the victims of breach of contract. And Cowherd violated state tenant/landlord law on at least five grounds.

Here is something for you to munch on: If it's proven that Cowherd worked in conjunction with "state actors" (i.e., cops) -- and there is substantial evidence he did -- he could be guilty of a federal crime, as could his lawyer, Mr. Lowther. It's called "deprivation of rights under color of law." Look it up. There are a lot of individuals behind bars right now for that very offense.

Perhaps Mr. Cowherd and Mr. Lowther will join them. Perhaps they will get to see how it feels to have "orange be the new black."

We'll see how funny you think all of this is if justice slaps Mr. Cowherd right in the chops. Maybe you should educate yourself, but then you are probably a hopeless case who seems to revel in being stupid. Good luck with that.